Exhibit 10.39


 


FORM


 


EXECUTIVE
SUPPLEMENTAL RETIREMENT AGREEMENT


 


THIS AGREEMENT
is effective as of this      day of                       ,
           (the “Effective
Date”) by and between                           ,
a             
corporation, a wholly owned subsidiary of                       ,
a             
corporation (“[Employer]”), and, and                     
(hereinafter “Employee”).


 


WHEREAS, Employee
was employed by and appointed an Executive Officer of                       
effective as of the          day of                   ,
      , and the Employee continues to be employed
by           ;


 


WHEREAS,                       
desired to encourage the Employee to continue his or her employment with the
Employer, and continues to encourage the Employee to continue his or her
employment; and


 


WHEREAS,                       
and Employee intend that this Agreement comply with the requirements of section
409A of the Code.


 


NOW,
THEREFORE, it was agreed and continues to be agreed as follows:


 


1.             Definitions.
For all purposes of this Agreement, except as otherwise expressly provided, or
unless the context otherwise requires, the terms defined in this section have
the meanings assigned to them and include the plural as well as the singular. Certain
terms defining the parties hereto are defined in the first paragraph of this
instrument.


 


A.            “Employer” means                       
and all of its direct or indirect subsidiaries in which it directly or
indirectly has at least an eighty percent (80%) ownership interest, and any
other trade or business with whom which                       
would be considered a single employer under Code section 414(b) or 414(c).


 


B.            “Executive Officer” means all
corporate officers approved by the board of directors of                       .


 


C.            “Supplemental Retirement Benefit”
means the benefit to be paid as described and pursuant to the calculations set
out in Section 2 herein.


 


D.            “Full-time Employment” means a year
during which the Employee has actively worked for the Employer for at least one
thousand (1,000) hours as an Executive Officer. A year shall be defined as a
period of one year beginning on the first day of employment, or the effective
date of this Agreement if later, and on each anniversary of that date.


 


E.             “Time of Service” means the number
of years spent by the Employee in Full-Time Employment beginning on or after
the Effective Date of this Agreement; provided that no credit will be allowed
for Full-Time Employment or service which occurred prior to Employee’s
attainment of the age of thirty (30). The occurrence of a


 

















 


Change of
Control does not affect the Time of Service that is credited to the Employee.


 


F.             “Base Salary” means the Employee’s
base salary from                       ,
exclusive of any and all other compensation paid or to be paid by an Employer
including, but not limited to, bonuses, performance awards, vehicle allowances
and financial services, and without regard to any elective deferral thereof
pursuant to any benefit plan maintained by an Employer. In the event of a Change
of Control, Base Salary shall be the greater of the Employee’s Base Salary from
                      
immediately prior to the Change of Control or the Employee’s Base Salary paid
by                       
or any successor in interest to                       
at the time in question.


 


G.            “Named Beneficiary” means the
beneficiary or beneficiaries specifically named and identified on the Employee’s
group life insurance policies with                       .
In the event of multiple life insurance policies, the beneficiary
designation(s) on the policy with the greatest dollar value will govern.


 


H.            “Early Vested Retirement Benefit”
means that benefit specifically defined in Section 6 (B) herein.


 


I.              “Total Disability” means total
disability as determined under                       ’s
Long-Term Disability Insurance Program, provided the Employee is “disabled”
within the meaning of Code section 409A(a)(2)(C).


 


J.             “Change of Control”


 


(a)                                  “Change
of Control” is the occurrence of any of the following on or after               :


 


(i)                                     the
sale, lease, exchange or other transfer, directly or indirectly, of all or
substantially all of the assets of           ,
in one transaction or in a series of related transactions, to any Person;


 


(ii)                                  the
approval by the stockholders of           
of any plan or proposal for the liquidation or dissolution of       ;


 


(iii)                               any
Person, other than a “bona fide underwriter,” is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of (1) 20 percent or more, but not more than 50 percent, of the
combined voting power of           ’s
outstanding securities ordinarily having the right to vote at elections of
directors, unless the transaction resulting in such ownership has been approved
in advance by the “continuity directors,” as defined at Subsection (b), or (2)
more than 50 percent of the combined voting power of       ’s
outstanding securities ordinarily having the right to vote at elections of
directors (regardless of any approval by the continuity directors);


 


(iv)                              a
merger or consolidation to which         
is a party if the


 


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stockholders of       
immediately prior to the effective date of such merger or consolidation have,
solely on account of ownership of securities of       
at such time, “beneficial ownership” (as defined in Rule 13d-3 under the
Exchange Act) immediately following the effective date of such merger or
consolidation of securities of the surviving corporation representing (1) 50
percent or more, but not more than 80 percent, of the combined voting power of
the surviving corporation’s then outstanding securities ordinarily having the
right to vote at elections of directors, unless such merger or consolidation
has been approved in advance by the continuity directors, or (2) less than 50
percent of the combined voting power of the surviving corporation’s then
outstanding securities ordinarily having the right to vote at elections of directors
(regardless of any approval by the continuity directors); or


 


(v)                                 the
Continuity directors cease for any reason to constitute at least a majority of
the Board.


 


(vi)                              For
purposes of this section-


 


(1)                      “Continuity
director” means any individual who was a member of the Board of       
on                   ,
while he or she is a member of the Board, and any individual who subsequently
becomes a member of the Board whose election, or nomination for election by         ’s
stockholders, was approved by a vote of at least a majority of the directors
who are Continuity directors (either by a specific vote or by approval of the
proxy statement of        in which such
individual is named as a nominee for director without objection to such
nomination). For example:


 


(A)                  If a majority of
the nine individuals constituting the Board on                     ,
approved a proxy statement in which two different individuals were nominated to
replace two of the individuals who were members of the Board on             ,
the two newly elected directors would join the seven remaining directors who
were members of the Board on             ,
as Continuity directors.


 


(B)                    If a majority
of the directors in clause (A) above approved a proxy statement in which three
different individuals were nominated to replace three other directors who were
members of the Board on                     ,
the three newly elected directors would also become, along with the other six
directors, Continuity directors. Individuals subsequently joining the Board
could become Continuity directors under the principles reflected in this
example.


 


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(2)                      “Bona fide
underwriter” means a Person engaged in business as an underwriter of securities
that acquires securities of        or                       
from            or                       
through such Person’s participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such
acquisition.


 


(3)                      “Exchange
Act” is the Securities Exchange Act of 1934, as amended. Any reference to a
specific provision of the Exchange Act or to any rule or regulation thereunder
includes a reference to such provision as it may be amended from time to time
to any successor provision.


 


(4)                      “Person”
includes any individual, corporation, partnership, group, association or other “person,”
as such term is used in Section 13(d) or Section 14(d) of the Exchange Act,
other than       , any affiliate or any benefit
plan sponsored by          or an
affiliate. For this purpose an affiliate is (A) any corporation at least a
majority of whose outstanding securities ordinarily having the right to vote at
elections of directors is owned directly or indirectly by       
or (B) any other form of business entity in which           ,
by virtue of a direct or indirect ownership interest, has the right to elect a
majority of the members of such entity’s governing body.


 


K.            “Code” means the Internal Revenue
Code of 1986, as amended (including, when the context requires, all
regulations, interpretations and rulings issued thereunder).


 


L.             “Termination of Employment” means a
severance of an Employee’s employment relationship with all Employers for any
reason, other than on account of death, provided such termination constitutes a
“separation from service” within the meaning of Code section 409A, and any
change in employment that is deemed to constitute a “separation from service”
under Code section 409A.


 


2.             Supplemental
Retirement Benefit. If the Employee continues in Full-Time Employment
without interruption until he or she attains the age of sixty (60) years and
has at least seven (7) years of service as an Executive Officer upon his or her
Termination of Employment then, commencing as of the first day of the second
calendar month immediately following the Termination of Employment,                       
shall pay a Supplemental Retirement Benefit, in equal monthly installments, to
the Employee during his or her remaining lifetime. A monthly payment shall be due
to the Employee only if he or she is living on the payment date. The
Supplemental Retirement Benefit to be paid hereunder shall be equal to one
percent (1%) of the Employee’s Base Salary at the annual rate in effect when he
or she turned age sixty (60), multiplied by the Employee’s Time of Service with
the Employer, not to exceed thirty (30) years. The result of this calculation
shall be divided by twelve (12) to arrive at the monthly benefit payment.


 


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3.             Survivor Benefit.
If, at the time of the Employee’s death, the Employee has satisfied the age and
service requirements for receiving a benefit under Section 2, Section 5 or
Section 6(B), whether or not the benefit had commenced, and the Employee had a
Termination of Employment before the Employee’s death,                       
shall pay to the Employee’s surviving spouse, if any, monthly payments equal to
fifty percent (50%) of the monthly benefit that the Employee was receiving or
would have received had the Employee’s benefit pursuant to the applicable
Section commenced prior to the Employee’s death. Assuming Employer receives
timely notice of Employee’s death, the first payment shall be due as of the
later of (a) the month during which the Employee died and (b) the date as of
which payments would have commenced to the Employee if the Employee had experienced
a Termination of Employment immediately prior to the Employee’s death and
survived until benefits commenced pursuant to Section 2, 5, or 6(B). Payments
to the Employee’s surviving spouse shall cease in the month during which the
Employee, if living, would have attained age 80 or the month in which the
spouse dies, whichever comes earlier.


 


For purposes
of the survivor benefit to be paid under this Section 3, the only person
eligible for this benefit shall be the then living current spouse of the
Employee. No survivor benefit payments shall be paid under this Section 3 to
any other heirs or beneficiaries of the Employee or to any heirs or
beneficiaries of the Employee’s spouse upon the spouse’s death.


 


If payments
are being paid under this Section 3, no payments are owed by Employer under any
other Section of this Agreement, specifically including but not limited to
Section 4.


 


4.             Pre-retirement
Death Benefit. If the Employee either:


 


1)                                      has
experienced a Termination of Employment as a result of Total Disability (and
has not recovered from such Total Disability), or


 


2)             is in Full-Time Employment,


 


and dies at
any time before he or she has satisfied the age and service requirements for
receiving a benefit pursuant to Section 2, Section 5, or Section 6(B),                       
shall pay a pre-retirement death benefit to the Employee’s Named Beneficiary in
a single lump sum amount equal to twice the Employee’s Base Salary at the
annual rate in effect at the time of his or her death or twice the Employee’s
Base Salary at the annual rate in effect at the termination of his or her Termination
of Employment due to Total Disability. Such payment shall be made as soon as
administratively practical after                       
receives written notice of the Employee’s death.


 


If payments
are being paid under this Section 4, then no payments are owed by the Employer
under any other Section of this Agreement, specifically including but not
limited to Section 3.


 


5.             Disability. If
the Employee has completed seven (7) years of service as an Executive Officer
and experiences a Termination of Employment by reason of his or her Total
Disability prior to his or her attaining age fifty-five (55), the period of the
Employee’s Total Disability will count as Time of Service until he or she
attains the age of fifty-five (55) provided he or she has not recovered from
such Total Disability.


 


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If the
Employee’s Termination of Employment occurs by reason of his or her Total
Disability before he or she has completed at least seven (7) years of service
as an Executive Officer, the period of his or her Total Disability will count
as both Time of Service and service as an Executive Officer until he or she has
been credited with seven (7) years of service as an Executive Officer.


 


Notwithstanding
the benefit calculations set out for the Early Vested Retirement Benefit under
Section 6(B), the monthly benefit payable to an Employee who experiences a
Termination of Employment by reason of Total Disability shall commence at the
later of age fifty-five (55) or the date which is seven (7) years after                       
required to achieve at least seven (7) years of service as an Executive Officer
pursuant to this Section 5, and shall be equal to one percent (1%) of the
Employee’s Base Salary at the annual rate in effect at the time of commencement
of Total Disability, multiplied by the Employee’s Time of Service, including
those years granted pursuant to the above accrual provisions, divided by twelve
(12).


 


6.             Termination of
Employment.


 


A.            If the Employee’s Termination of Employment
occurs for any reason, except due to the Employee’s death or Total Disability
as provided above, before the Employee has attained age fifty-five (55) and completed
at least seven (7) years as an Executive Officer, no benefits whatsoever shall
be due Employee under the terms of this Agreement.


 


B.            If the Employee’s Termination of Employment
occurs for any reason, except due to the Employee’s death or Total Disability,
after the Employee has attained the age of fifty-five (55) years and completed
at least seven (7) years of service as an Executive Officer but before the
Employee has attained the age of sixty (60) years, then, commencing as of the
first day of the second calendar month immediately following the Termination of
Employment,                       
shall pay an Early Vested Retirement benefit in equal monthly installments to
the Employee during his or her remaining lifetime. A monthly payment shall be
due to the Employee only if he or she is living on the payment date. The
monthly payment under the Early Vested Retirement Benefit shall be one percent
(1%) of the Employee’s Base Salary at the annual rate in effect at the time of
termination of employment, multiplied by his or her Time of Service accrued
through the date of termination of employment, divided by twelve (12).


 


C.            If the Employer determines that the
Employee is a “key employee” of a publicly traded corporation within the
meaning of Code section 409A(a)(2)(B)(i), then any distributions to the
Employee arising on account of the Employee’s Termination of Employment (other
than on account of death) shall be suspended for six months following such
Termination of Employment. Any payments that were otherwise payable during the
six-month suspension period referred to in the preceding sentence, will be paid
as soon as administratively practicable after the end of such six-month
suspension period.


 


7.             Small Benefit.
If, at the time benefit payments are scheduled to commence under this Agreement
to the Employee or the Employee’s surviving spouse, the lump sum present value
of such benefit is less than $100,000, then such benefit will be paid in a
single lump sum.


 


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The present value of such
benefit will be determined using a reasonable life expectancy table used under
the Jostens Pension Plan D (or any such successor or replacement plan) and a
discount equal to the prime rate in use by the Wells Fargo Bank, Minneapolis,
Minnesota, or any successor organization, at the time of the Employee’s
termination or death. A payment pursuant to this Section 7 shall be in lieu of
all other benefits otherwise due or payable under this Agreement.


 


8.             No Acceleration.
Except as provided in Section 7, neither the time nor schedule of any benefit
payment under this Agreement may be accelerated, except as follows:


 


A.            The payment of a small benefit under
Section 7.


 


B.            To the extent the Employer
determines it necessary to withhold for the payment of FICA taxes imposed under
Code section 3101, 3121(a) or 3121(v)(2) and to pay the additional federal
income tax under Code section 3401 or the corresponding withholding provisions
of applicable state, local or foreign tax laws as a result of the payment of
the FICA taxes, as permitted under Code section 409A.


 


C.            Upon a termination of this
Agreement, if and only to the extent and at the time permitted under Code section
409A and only if the Employer agrees to comply with the requirements of such
termination imposed by Code section 409A


 


9.             Continuation of
Employment. If the Employee continues in the employ of the Employer after
attaining the age of sixty (60) years, any Supplemental Retirement Benefits
otherwise payable hereunder shall be deferred to the time of Termination of Employment.
In such event, there shall be no increases in any benefits hereunder on account
of any Time of Service or increases to Base Salary after the age of sixty (60)
years. Service as an Executive Officer after age sixty (60) shall be recognized
for purposes of vesting for an Employee’s Supplement Retirement Benefit or
Early Vested Retirement Benefit.


 


10.           Life Insurance
Contract. Employer has the right to elect to purchase a life insurance
contract or contracts on the life of the Employee, for the purpose of providing
Employer with cash funds to meet and discharge the payments to be made by it
under this Agreement. In such event, Employer shall at all times be the sole
and absolute owner of any such life insurance contract or contracts and the
sole beneficiary thereof, and shall have the full and unrestricted right to use
or exercise all values, privileges and options available thereunder as it may
desire, without the knowledge or consent of any other person or persons. It is
expressly understood and agreed that notwithstanding any of the terms,
provisions or conditions of this Agreement, neither the Employee nor his or her
beneficiary, his or her estate, or any other person, persons, or their
executors or administrators shall have any right, title or interest whatsoever
in or to any such life insurance contract or contracts.


 


11.           Discharge for
Cause. Notwithstanding any other provisions of this Agreement to the
contrary, in the event the Employee’s employment is terminated for cause, he or
she shall forfeit all amounts otherwise due or payable to him or her hereunder.
For purposes of this Agreement, “terminated for cause” shall mean a Termination
of Employment on account of the


 


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Employee’s poor or
unsatisfactory performance or misconduct, which has or may result in
significant injury to the Employer, its business reputation or financial
structure.


 


12.           Noncompete. In
consideration for the benefits to be paid to the Employee hereunder, the
Employee agrees that from the date of his or her Termination of Employment and
during the entire term he or she is receiving any payments under this Agreement
he or she will refrain from performing services of any kind, as an employee or
otherwise, whether directly or indirectly, to or for the benefit of any person,
firm or corporation whose business the board of directors of                       
shall in good faith determine to be competitive with any of the businesses that
the Employer was involved in at the time of the Employee’s retirement. Notice
of such determination shall be mailed to the Employee at his or her last known
mailing address; in the event that the Employee fails to discontinue such
activities, all amounts then remaining unpaid under this Agreement shall be
automatically forfeited, and the Employee agrees that the Employer shall have
no past or future liability to him or her or to any other person hereunder.


 


13.           Change of Control.
In the event there is a Change of Control of                       ,
the Employee shall, at all times on and after the date of the Change of
Control, be deemed to have completed at least seven (7) years of service as an
Executive Officer. If the Employee’s Termination of Employment, other than by
reason of the Employee’s Total Disability, occurs on or after the date of the
Change of Control but before the Employee attains age fifty-five (55), the
Employee will nevertheless be entitled to receive a benefit pursuant to Section
6(B) upon attaining age fifty-five (55), provided, first, that the Employee’s
actual Time of Service shall be used in calculating such benefit; and, second,
that if the Employee dies before attaining age fifty-five (55), the Employee’s
Named Beneficiary shall receive a death benefit pursuant to Sections 3 or 4
herein.


 


14.           Employment at
Will. The Employee hereby acknowledges that he or she is an Employee at
will and that nothing contained herein constitutes any obligation or commitment
by the Employer to continue the Employee in the Employer’s employment.


 


15.           Release. As a
condition to qualifying for any of the benefit payments provided for hereunder,
the Employee at the termination of his or her employment and prior to receiving
any payments under this Agreement, agrees to execute a general release
agreement releasing the Employer and its directors, officers, employees and
agents from any and all claims or actions of any kind he or she may have
against it and them arising out of the Employee’s employment with the Employer.


 


16.           Additional
Considerations.


 


A.            Neither the Employee, his or her
beneficiary, nor any other person claiming through or under him or her shall
have any right to commute, encumber, or dispose of the right to receive
payments hereunder, all of which payments and the right thereto are expressly
declared to be nonassignable. In the event of any attempted assignment or other
disposition, all benefits hereunder are forfeited and Employer shall have no
further liability to Employee hereunder. This paragraph shall not, however,
restrict a beneficiary’s exercise of a power of appointment conferred upon such
beneficiary by the Employee’s beneficiary designation.


 


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B.            This Agreement shall be binding upon
and inure to the benefit of any successor of                       ,
including, but not limited to, any person, firm, corporation or other business
entity which at any time, whether by merger, purchase, or otherwise acquires
all or substantially all of the assets or business of                       ,
and upon the Employee and any other person claiming through or under the
Employee.


 


C.                                  
shall have the discretionary authority and power to make all determinations as
to the rights to benefits under this Agreement. Any decision by                       
denying a claim by the Employee and any other person claiming through or under
the Employee for benefits under this Agreement shall be stated in writing and
delivered or mailed to the Employee or such other person. Such decision shall
set forth the specific reasons for the denial, written to the best of                       ’s
ability in a manner that may be understood without legal or actuarial counsel. In
addition,                       
shall afford a reasonable opportunity to the Employee or such other person for
a full and fair review of the decision denying such claim.


 


D.            This Agreement may not be amended,
altered or modified, except by a written instrument signed by the parties
hereto, or their respective successors or assigns, and may not be otherwise
terminated except as provided herein.


 


IN WITNESS
WHEREOF, the parties have executed this Agreement in                         ,
                    ,
in duplicate, to be effective on the date first written above.


 


 


	
   

  	
   

  	
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